In late April the Trump Administration announced the creation of VOICE, or the Victims of Immigration Crime Engagement office, which it claims will assist Americans who are victims of crimes perpetrated by immigrants. President Trump has stated that this office is necessary because immigrants are victimizing the US population and those victims are too often ignored. In reality, immigrants are much less likely to commit crimes than native-born Americans and the cases of those who are accused of crimes are often highly-publicized and used as an example to generate an unfounded fear of all immigrants. Furthermore, immigrants accused of crimes face harsher consequences, and their basic rights are regularly violated in the judicial system.

One of the fundamental principles of the US judicial system is that a criminal defendant is considered innocent until proven guilty in the court of law. This principle is also a human right enshrined in the UN Declaration of Human Rights. Furthermore, the US Constitution guarantees the right to a “speedy and public trial” for criminal defendants and the right to due process.

Nevertheless, immigrants are often not afforded the presumption innocence. Immigrants accused of crimes are commonly considered guilty before having the chance to defend themselves in criminal court. As immigration enforcement ramps up under President Trump, and he implements programs like VOICE which target immigrants, more and more people will be subject to this unjust system.

After non-citizens are arrested they may be transferred to immigration custody if they are released from criminal custody on their own recognizance or after paying a criminal bond. At this point, they must secure a separate immigration bond from an immigration judge to be released to attend their criminal hearing and defend themselves in criminal court.

The problem with this system is that immigration bonds are much higher than criminal bonds for minor offenses (usually between $5,000 and $20,000). Some immigration judges set high bond or deny bond completely even for misdemeanor charges or suspicion of criminal behavior [pdf]. In these cases, the accused have no chance to defend themselves in criminal court and are stuck in detention purgatory. They cannot get out of immigration detention because they have not yet been found innocent of the charges against them, but they cannot be found innocent because they cannot get out of immigration detention.

The immigration system must respect the basic judicial and human rights principle of innocence until proven guilty by allowing those in immigration detention to attend their criminal hearings. There should be a clear mechanism by which those accused of crimes can be transferred back to criminal custody from immigration custody so that they can defend themselves in criminal court.

In Virginia where I practice immigration law, only the Commonwealth’s Attorney can issue a writ to bring a defendant back to state custody from immigration custody. If the Commonwealth’s Attorney declines to issue the writ the defendant can be deported before he or she is ever able to defend against charges in criminal court. Ironically, those accused of more serious crimes are more likely to be transferred back to state custody to get their day in court, while those accused of minor crimes are unlikely to warrant the effort of a prosecutor to bring them back to state custody and therefore may never be able to defend themselves.

This system also opens the door to exploitation. If immigrants can be subject to no or high bond detention based on allegations alone, those who wish to abuse or hold power over them can easily use the threat of a false police report. Those who fabricate allegations need not worry because the accused may never have the chance to defend themselves in court before being deported.

The system must change to respect constitutional and human rights. Those accused of crimes do not lose their humanity because of their immigration status, and we shouldn’t lose ours to deny them their most basic rights.